Justices weigh ‘faith-based’ case

In a closely watched church-state separation case, a Bush administration lawyer urged the Supreme Court on Wednesday to shield the president’s “faith-based initiative” from legal challenges in court.

U.S. Solicitor General Paul D. Clement said taxpayers who believe the White House is unconstitutionally promoting religion should not be accorded legal standing to sue in court. It would be too “intrusive on the executive branch” to permit lawsuits contesting how the president and his advisors conduct their affairs, he said.

The Wisconsin-based Freedom From Religion Foundation sued in 2004 to challenge the faith-based initiative on 1st Amendment grounds. The group said the White House officials were using public money to help church-based groups win grants and contracts.

It is the first major religion case to come before the high court since President Bush’s two appointees took their seats. In their questions Wednesday, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. sounded as though they sided with the administration.

Overall, the nine justices seemed split during the hourlong argument. If they adopt the administration’s view, the ruling could make it harder for critics to sue officials who use public money in ways that support religion. If the justices rule in favor of the Freedom From Religion Foundation, the group would still have to prove its case in court.

Roberts made it clear that he thought the group’s claims should be thrown out of court. If taxpayers can sue the government whenever an official invokes God or religion, why couldn’t anyone “sue our marshal for standing up and saying, ‘God save the United States and this honorable court’?” asked Roberts, citing the invocation the justices hear when entering the courtroom.

Justice Antonin Scalia appeared to agree. Otherwise, he said, taxpayers could sue the president for having spent tax money to promote religion simply because he flew across the country to give a speech to a religious group. “The whole trip is about religion,” Scalia said, but he added that “it really doesn’t make any sense” to permit lawsuits challenging this spending.

Taking up the opposite view, Justice Stephen G. Breyer said courts and lawsuits are needed to enforce the separation of church and state. “People become terribly upset when they see some other religion getting the money from the state” to subsidize their faith, he said.

“We have a pretty clear, simple rule,” Breyer said, that allows lawsuits “when the government spends money in violation of the establishment clause.” The 1st Amendment says, “Congress shall make no law respecting an establishment of religion.”

The issue of who has standing is technical but crucial. It can determine when and whether the government’s conduct can be challenged in court.

Normally, people must say they have suffered a personal injury of some sort before they can sue in court. For example, taxpayers cannot sue to stop the war in Iraq simply because they disagree with it.

But nearly 40 years ago, the court under then-Chief Justice Earl Warren made an exception for challenges to government spending that promoted religion. Taxpayers can sue if tax money is used to favor religion, the court said in Flast vs. Cohen.

In Wednesday’s argument, Solicitor General Clement urged the court to narrow that exception considerably. In one exchange, he said taxpayers should not be allowed to sue even if officials used tax money to build a church.

The Bush administration said Freedom From Religion’s suit should be thrown out on the grounds that the challengers did not have standing to sue in court. However, the U.S. appeals court in Chicago allowed the suit to go forward. In a 2 to 1 ruling, Judge Richard Posner said plaintiffs sought to show that the White House-sponsored meetings were “propaganda vehicles for religion.”

But before the suit could be heard, the Supreme Court agreed to hear the administration’s appeal filed on behalf of Jay Hein, who directs the White House Office of Faith-Based and Community Initiatives.

Clement said the government should be shielded from suits over how officials use general tax money. He agreed taxpayers could sue if Congress passed a law that distributed money directly to churches or religious groups. But it is a different matter if the White House uses general funds to encourage religious groups to do charitable work, he argued.

A lawyer for the Wisconsin group said the administration’s approach would “insulate from any taxpayer challenge really huge swaths of conduct.... The government could hire a corps of chaplains and send them out to the populace at large,” said Washington lawyer Andrew J. Pincus.

In one key exchange, Justice Anthony M. Kennedy seemed to lean in favor of the administration’s view. He said it would be “unduly obtrusive” to allow judges to challenge the president’s handling of such programs. “We would be supervising the White House and what it can say, who it can talk to,” Kennedy said in a disapproving tone.

A coalition of liberal groups filed a friend-of-the-court brief that urged the court to reject the administration’s argument.

“Tax dollars may not be used to subsidize religious activity,” said Steven Shapiro, legal director of the American Civil Liberties Union. “Barring taxpayers from enforcing this fundamental principle in court would effectively license the government to violate the Constitution.”

However, Jay Sekulow, chief counsel for the conservative American Center for Law and Justice, urged the court to go further than the administration suggested and overturn the Warren-era rule that allows taxpayers to sue in religion cases.

“The church-state separationists have been given a free pass ... to bring lawsuits,” he said Wednesday, adding that the court should “remove the special privileges afforded to atheists and others who are antagonistic to religion.”

The case, Hein vs. the Freedom From Religion Foundation, will be decided in several months.

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david.savage@latimes.com